An administrative law judge (ALJ) for the Equal Rights Division of the Department of
Workforce Development (Department of Industry, Labor and Human Relations prior to July 1,
1996) issued a decision in this matter on September 21, 1995. A timely petition for review
was filed. The commission received the file from the Division on October 25, 1996.

The commission has considered the petition and the positions of the parties, and it has
reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees
with the decision of the ALJ, and it adopts the findings and conclusion in that decision
as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed December 4, 1996harriri.rsd : 164 : 9

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

In his petition for commission review the complainant takes issue with several of the
findings of fact made by the administrative law judge. Specifically, the complainant
disagrees with the administrative law judge's findings that Respondent B did not set his
hours of work or supervise his daily activities, that there was considerable overlap
between his job duties and those of Mr. Casey, that he was given a signed check for the
purchase of a computer, and that it would have been his responsibility to instruct the
city to begin incentive payments with respect to lease agreements. Based upon its
independent review of the record, the commission concludes that the findings of fact in
question are supported by the witness testimony and documentary evidence presented at the
hearing. The commission also notes that, although the complainant argues that portions of
the testimony are untrue, the complainant elected not to testify on his own behalf and
offered nothing to rebut the testimony in question. Moreover, the complainant has failed
to clarify the significance of the challenged findings or to explain how they adversely
affected the outcome of the case, and the commission sees no reason to conclude that they
did so. The undisputed evidence presented at the hearing established that the
complainant's job duties included fund raising and accepting membership dues, and that the
complainant would have been called upon to work unsupervised in an office in which blank
checks and large amounts of cash were frequently on hand. Further, in addition to the
opportunity for fraud presented by the complainant's handling of funds, the respondents
credibly explained that the complainant's job entailed acting as a public relations
representative and that there was a concern that his conviction record might result in a
public relations problem for the respondents. Thus, even if there were some basis for
concluding that the findings of fact in question were made in error, the record
nevertheless contains ample evidence to support the conclusion that the complainant's
criminal conviction for mail fraud, bank fraud, and interstate transportation of forged
securities was substantially related to the circumstances of the position in question.

In his petition the complainant also contends that, because his criminal conviction was
based solely upon circumstantial evidence, there is no evidence to determine whether it
substantially relates to the circumstances of the job. This argument is without merit. A
criminal conviction may be based upon circumstantial evidence, and there is nothing in the
record to suggest that the complainant's conviction has been overturned. Moreover, in
determining whether a conviction is substantially related to the circumstances of a
particular job, the statute does not contemplate an inquiry into the evidence presented at
the criminal trial. Rather, the question to consider is whether the circumstances of the
offense for which the employe has been convicted relate to the particular circumstances of
the job. In this case, the circumstances of the complainant's criminal conviction indicate
a propensity to act dishonestly in order to obtain money, and a job entailing fund raising
and the collection of dues bears a substantial relationship to that conviction.

Finally, the complainant argues that, although the Wisconsin Fair Employment Act
(hereinafter "Act") provides that it is not discrimination to terminate the
employment of an individual who has a criminal conviction substantially related to the
circumstances of the job, a convicted felon does not lose any civil rights guaranteed
under the United States Constitution or the constitution of the State of Wisconsin. The
complainant indicates that the respondents engaged in a conspiracy to violate his civil
rights and, further, that he was discharged without a formal hearing, which had the effect
of producing a constitutionally prohibited "bill of pains and punishments"
against him. The complainant has not bothered to develop these constitutional arguments,
and the commission cannot be entirely certain how to interpret his allegations. Although
the complainant suggests that he was deprived of constitutionally guaranteed rights, he
has not demonstrated that his constitutional claims fall within the purview of the Act. To
the extent the complainant may be challenging the constitutionality of the Act itself, the
commission is unable to consider this argument, as an administrative agency is without
authority to rule on the constitutionality of the statutes which it is authorized to
enforce. SeeMcManus v. Revenue Dept., 155 Wis. 2d 450,
454, 455 N.W.2d 906 (Ct. App. 1990).